New York newspaper seeks access to secret settlement files

Friday, June 5, 1998

Despite the “significant public interest” in the outcome of negotiations in an environmental case, a federal judge ruled that under the First Amendment, a New York newspaper had no right of access to closed settlement conferences and sealed documents.

The (Glens Falls) Post-Star's appeal against U.S. District Judge Lawrence E. Kahn's decision is pending before the 2nd U.S. Circuit Court of Appeals.

The environmental lawsuit involves General Electric and Moreau, a town north of Albany. The suit alleges that GE disposed of more than 450 tons of industrial waste from 1958 to 1968, contaminating the town's water supply. All documents in the settlement talks were sealed by court order in 1994.

In September 1997, Judge Kahn ruled that opening the settlement process to the media “would delay if not altogether prevent a negotiated settlement of this action.”

“In a perfect world, the public would be kept abreast of all developments in the settlement discussions of lawsuits of public interest,” Kahn wrote. “In our world, such disclosure would … result in no settlement discussions and no settlements.

“From a practical perspective, few cases would ever reach a non-litigated end if the press was in attendance at a settlement conference or privy to settlement proposals,” he said.

Adam R. Shaw, a First Amendment attorney based in Albany, agreed. He said: “In this case, the parties involved might not have been willing to compromise in a settlement if they thought they were going to be explaining every move to the public. Because of the settlement factor, it was probably right to keep the documents sealed and the settlement conferences closed.”

The court “was merely helping the parties get together to settle their case,” Shaw said. “Getting [access to] court documents lends credibility to the court, but settlement documents aren't a part of the decision-making process. The court's not deciding anything.”

The paper's lawyer, Thomas F. Gleason, told said that he's waiting for the court to set an oral argument date. He expects to be notified any day now.

Apparently the case has been delayed because the town's attorney was injured by a gunshot wound while vacationing.

“It's interesting that everyone agrees the underlying issues are of great public importance,” Gleason said. “The First Amendment gives the press and public the right to know. You don't create blanket exceptions when you're dealing with issues of public importance, or at least you shouldn't.”

The court, however, rejected the Post-Star's First Amendment argument, finding that “settlement conferences are not now and have never been part of the public process of litigation.”

In briefs filed with the court, Gleason argued that “if there is not reversal here, it may be impossible for an effective, full and fair public debate on the critical public policy issues which are incorporated in the settlement to ensue.”